Supreme Court

Jonathan H. Adler | 9.20.2024 12:10 PM

Over the summer, Justice Elena Kagan offered support for an ethics code for Supreme Court justices and suggested possible ways such a code could be enforced, such as through a panel of lower court judges. She reiterated this position earlier this month.

Would such a proposal work? James Burnham has doubts.

This proposal has several fundamental problems. For starters, it would give a future chief justice extraordinary power over his or her colleagues—power that some future, malevolent chief justice could easily abuse. By selecting the lower court judges who stand in judgment of the justices, the chief justice could put a thumb on the scale of those determinations. Gaining an upper hand on an intractable colleague would be as easy as stacking the ethics panel with that colleague's antagonists. We can certainly hope no judge would abuse such authority. But........

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